IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_______________________________________

ANTHONY HARPER,

 Petitioner,

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 CIVIL ACTION

v. :

DAVID DIGUGLIEMO, THE DISTRICT

ATTORNEY LYNN ABRHAM, and THE

ATTORNEY GENERAL OF THE STATE

THOMAS CORBOTT,

 Respondents.

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 NO. 05-3444

_______________________________________:

DuBOIS, J. MAY 11, 2006

M E M O R A N D U M

I. INTRODUCTION

Petitioner, Anthony Harper, is a state prisoner currently serving a life sentence for firstdegree murder and a consecutive sentence of ten-to-twenty years for robbery at the State

Correctional Institute in Graterford, Pennsylvania. On February 13, 1998, Harper filed a pro se

habeas petition, which was denied by this Court. Harper v. Vaughn, No. 98-728, 2002 WL

257850 (E.D. Pa. Feb. 21, 2002).

Presently before the Court is the petitioner’s second pro se Petition for Writ of Habeas

Corpus Under 28 U.S.C. § 2254, filed on July 5, 2005 (“second habeas petition”), and

petitioner’s pro se Memorandum of Law in Support of Habeas Corpus, filed on February 23,

2006. In this second habeas petition, Harper sets forth thirteen claims, which he argues are

grounds for relief from his conviction and his sentence. For the reasons set forth in this

Memorandum, the Court (1) dismisses those claims which Harper raised in his first habeas

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 1 of 11
 The lengthy delay between the filing of the Petition and the Report and 1

Recommendation was due to a docketing error by the Clerk’s Office following a return of the

Petition to this Court by the Court of Appeals. See Harper v. Vaughn, No. 98-728, 2002 WL

257850, at *1 n.1 (E.D. Pa. Feb. 21, 2002) (explaining docketing error).

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petition and which this Court previously denied; and (2) transfers the remaining claims to the

United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. § 1631 for a decision

on the question whether to authorize the Court to consider such claims. 

II. BACKGROUND

In this Memorandum, the Court will set forth only the facts and procedural history

necessary to analyze Harper’s second habeas petition. A detailed factual and procedural history

may be found in Magistrate Judge Angell’s Report and Recommendation dated February 20,

2001 and the Court’s previous opinion in this case. See Harper v. Vaughn, No. 98-728, 2002

WL 257850, at *1-2 (E.D. Pa. Feb. 21, 2002); Report and Recommendation at 2-3 (Feb. 20,

2001) (quoting Commonwealth v. Harper, 499 A.2d 331, 333-34 (Pa. Super. 1985)).

On February 13, 1998, petitioner filed a pro se habeas petition in federal court alleging

eighteen claims for relief. A subsequent counseled memorandum of law narrowed the claims for

relief to five. By Report and Recommendation dated February 20, 2001, Magistrate Judge 1

Angell recommended that the Petition be denied without an evidentiary hearing. Magistrate

Judge Angell’s recommendation was based, inter alia, on her conclusions that (1) petitioner had

procedurally defaulted several of his claims and (2) petitioner had not satisfied his burden of

excusing the procedural default through his “bald assertions” of “cause and prejudice” and 

“actual innocence.” Report and Recommendation at 13. Magistrate Judge Angell recommended

that the remaining claims be denied on the merits.

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 2 of 11
 Petitioner filed a duplicate set of objections in this Court.

2

 The Court’s standard of review in evaluating a Report and Recommendation is de novo. 3

28 U.S.C. § 636(b).

 The Third Circuit’s practice with respect to applications for certificates of appealability 4

in habeas cases is set forth in Local Appellate Rule 22.3, which states:

An application for a certificate of appealability will be referred to a panel of three judges. 

If all the judges on the panel conclude that the certificate should not issue, the certificate

will be denied, but if any judge of the panel is of the opinion that the applicant has made

the showing required by 28 U.S.C. § 2253, the certificate will issue.

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Petitioner thereafter filed Objections to the Report and Recommendation on March 7 and

8, 2001. Petitioner argued that the Court’s failure to consider his procedurally defaulted claims 2

would result in a fundamental miscarriage of justice. By Memorandum and Order dated

February 21, 2002, after de novo consideration of the Report and Recommendation and 3

petitioner’s Objections, this Court overruled the Objections, adopted the Report and

Recommendation, and declined to hold an evidentiary hearing. Harper, 2002 WL 257850, at *3-

10. The Court also declined to issue a certificate of appealability because petitioner had failed to

make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. 

§ 2253(c)(3).

On March 22, 2002, petitioner filed a Notice of Appeal. Thereafter, he filed a motion for

a certificate of appealability in the Court of Appeals. By letter dated April 3, 2002, the motion

was referred to a panel of the Third Circuit for consideration. By Order dated November 27, 4

2002, a three-judge panel of the Court of Appeals denied petitioner’s motion for a certificate of

appealability because the “[a]ppellant ha[d] failed to make a substantial showing of the denial of

a constitutional right.” Harper v. Vaughn, No. 02-1826 slip op. (3d Cir. Mar. 27, 2002) (citing

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 3 of 11
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Petitioner thereafter filed a pro se submission entitled “Appeal to Set Aside Verdict of

District Court Decision for Not Turning Over A True Copy of Memorandum” in the Court of

Appeals on April 25, 2003. In that submission, petitioner stated that he had filed a petition for

certiorari in the United States Supreme Court and was told by letter from the Clerk of Court that

the Supreme Court would not review his petition for certiorari because the copy of this Court’s

Memorandum and Order dated February 21, 2002 that petitioner had attached to his petition for

certiorari was incomplete. Petitioner further stated in his pro se Appeal that he “didn’t receive a

full copy of Judge DuBois’s memorandum nor did the Appeals Court” and, therefore, “the

decision should be made to set aside the verdict by the District Court.” The Clerk of Court for

the United States Court of Appeals for the Third Circuit responded to petitioner’s pro se Appeal

on May 16, 2003 and informed him that no action would be taken with respect to that submission

because proceedings in that court had concluded and the Third Circuit “lack[ed] authority to

grant substantive relief.” The Clerk further noted that the copy of this Court’s Memorandum and

Order dated February 21, 2002 certified to the Third Circuit was complete and, therefore, the

panel that rejected his motion for a certificate of appealability made its decision based on a

review of a complete copy of this Court’s Memorandum and Order.

Next, on May 28, 2003, petitioner filed a pro se submission entitled “Relief From

Judgment or Order Under Rule 60(b)” (“Rule 60(b) Motion”). In that motion, Harper argued (1)

that the Court committed error in failing to review his claim of actual innocence under the

analysis employed by the Second Circuit in Whitley v. Senkowski, 317 F.3d 223 (2d Cir. 2003),

and (2) that the Court failed to grant him a “fair hearing” on his Petition. For the reasons set

forth in the Court’s Memorandum and Order dated July 23, 2003, the Court concluded that these

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 4 of 11
 That section of the AEDPA provides, inter alia, as follows: 5

(1) A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed

unless—

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or 

(B) (i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

(3) (A) Before a second or successive application permitted by this section is

filed in the district court, the applicant shall move in the appropriate court

of appeals for an order authorizing the district court to consider the

application.

(B) A motion in the court of appeals for an order authorizing the district

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arguments did not warrant relief, and accordingly, denied the Rule 60(b) Motion. Harper v.

Vaughn, 272 F. Supp. 2d 527 (E.D. Pa. 2003).

On August 5, 2003, Harper filed a Notice of Appeal. On February 27, 2004, a three-judge

panel of the Court of Appeals denied petitioner’s request for a certificate of appealability. On

May 21, 2004, the Court of Appeals denied Harper’s request for rehearing en banc. 

Harper filed the instant second habeas petition in this Court on July 5, 2005. 

III. DISCUSSION

A. AEDPA LIMITATION ON SECOND HABEAS PETITIONS

The Antiterrorism and Effective Death Penalty Act (“ADEPA”) of 1996, Pub. L. No.

104-132, 110 Stat. 1214, limits a petitioner’s ability to bring a second or successive habeas

petition. See 28 U.S.C. § 2244(b)(2). A state prisoner seeking to file a second or successive 5

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 5 of 11
court to consider a second or successive application shall be determined by

a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes a

prima facie showing that the application satisfies the requirements of this

subsection.

. . . .

28 U.S.C. § 2244(b).

 The Court summarizes the claims in the order that they appear in Harper’s second 6

habeas petition. 

 In his Memorandum of Law In Support of Habeas Petition, Harper elaborates on only 7

this first claim as follows: As a juvenile with diminished capacity, Harper argues that he lacked

the mental capacity to form the specific intent required to commit first-degree murder, for which

he was convicted. Without specific intent, the jury could not have found beyond a reasonable

doubt that Harper was guilty of first-degree murder. Moreover, since Harper was a juvenile with

diminished culpability, rather than an adult, see Roper, 543 U.S. at 571, the penological

justifications for a life sentence without the possibility of parole apply to him with less force. For

these reasons, Harper argues that the life sentence without the possibility of parole violates his

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§ 2254 habeas petition must, as a preliminary step, obtain an order from the appropriate court of

appeals authorizing the district court to consider such a motion. 28 U.S.C. § 2244(b)(3)(A).

On February 13, 1998, Harper filed his first pro se habeas petition in federal court.

Because Harper thereafter filed the instant second habeas petition without seeking prior

authorization from the Court of Appeals, this Court is precluded by the AEDPA from ruling on

the merits of any claim raised for the first time in the second habeas petition. 28 U.S.C. 

§ 2244(b)(3). 

B. CLAIMS IN HARPER’S SECOND HABEAS PETITION

In his second habeas petition, Harper raises the following thirteen claims :

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1. The imposition of a life sentence without the possibility of parole violated the rule

of law announced in Roper v. Simmons, 543 U.S. 551 (2004), which eliminated 

the juvenile death penalty, since Harper was a sixteen year old juvenile at the time

that he committed the crimes. 

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Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 6 of 11
Eighth and Fourteenth Amendment rights under the U.S. Constitution, and Article 1 § 13 of the

Pennsylvania Constitution.

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2. Appellate counsel, who also represented defendant at trial, was ineffective in

violation of Harper’s due process rights.

3. Trial counsel was ineffective for failing to call witnesses who would have proved

that Harper’s statement to the police was involuntary.

4. Trial counsel was ineffective for failing to introduce at trial medical evidence of

the injuries that Harper sustained at the hands of the police following his arrest. 

5. The ten-hour delay between arrest and arraignment violated Harper’s Sixth

Amendment rights. 

6. Harper’s Fourth, Sixth, and Fourteenth Amendment rights were violated because

his home was illegally searched, evidence was obtained from that search, and the

issue was not preserved.

7. The unlawful delay between Harper’s arrest and preliminary arraignment violated

his due process rights and his right to access the courts.

8. It was more likely than not that prosecutors in this case dismissed prospective

black jurors based on their race in violation of the rule announced in Batson v.

Kentucky, 476 U.S. 79 (1986). 

9. Although the Commonwealth of Pennsylvania knew that Harper was a juvenile, it

failed to appropriately secure his rights. 

10. Harper was not read his Miranda rights. 

11. By sentencing Harper to life imprisonment despite his juvenile status, the

Commonwealth of Pennsylvania violated his Eighth Amendment rights. 

12. Harper’s Sixth Amendment rights were violated because (A) a key witness for the

district attorney stated to the jury that Harper was in handcuffs outside the

courtroom; and (B) his defense counsel was actively representing conflicting

interests.

13. The jury was contaminated because the jury talked to a police officer about the

case during trial. 

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 7 of 11
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C. PREVIOUSLY RAISED CLAIMS DISMISSED

In his first habeas petition, Harper raised the claims numbered above as (2), (3), (4), (6),

(8), (10), (12.A), and (13); counsel briefed each of these claims except (10). See Harper v.

Vaughn, No. 98-728, 2002 WL 257850 (E.D. Pa. Feb. 21, 2002). The Court concluded that these

claims did not warrant federal habeas relief. Id. 

The AEDPA requires that “[a] claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior application shall be dismissed.” 28

U.S.C. § 2244(b)(1). Because the claims numbered above as (2), (3), (4), (6), (8), (10), (12.A),

and (13) were raised in Harper’s first habeas petition and denied by the Court, and in light of the

fact that petitioner has not set forth any new evidence to support these claims, the Court

dismisses these claims.

D. NEW CLAIMS TRANSFERRED TO COURT OF APPEALS

In his second habeas petition, Harper raises for the first time the claims numbered above

as (1), (5), (7), (9), (11), and (12.B). Pursuant to the AEDPA, petitioner is required to obtain an

order from the Court of Appeals authorizing this Court to consider these claims. See 28 U.S.C. §

2244(b)(3)(A) (“Before a second or successive [habeas petition] . . . is filed in the district court,

the applicant shall move in the appropriate court of appeals for an order authorizing the district

court to consider the application.”). Only if Harper’s second habeas petition makes a prima facie

showing that it satisfies the requirements of 28 U.S.C. § 2244 may the Court of Appeals

authorize this Court to consider the claims that remain in his second habeas petition. See 28

U.S.C. § 2244(b)(3)(C). Because petitioner has not obtained an order from the Court of Appeals 

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 8 of 11
28 U.S.C. § 1631 (2005) provides in pertinent part:

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Whenever a civil action is filed in a court . . . and that court finds that there is a want of

jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal

to any other such court in which the action or appeal could have been brought at the time

it was filed or noticed, and the action or appeal shall proceed as if it had been filed or

noticed for the court to which it is transferred on the date upon which it was actually filed

in or noticed for the court from which it is transferred. 

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authorizing this Court to consider the remaining claims, this Court is precluded from reaching

the merits of such claims on the present state of the record. 

Under the circumstances presented, the Court must either dismiss petitioner’s second

habeas petition as an unauthorized successive habeas petition, see Nunez v. United States, 96

F.3d 990, 991 (7th Cir. 1996); Peterson v. Brennan, 2004 U.S. Dist. Lexis 11860, *36 (E.D. Pa.

2004), or transfer the claim to the appropriate court of appeals pursuant to 28 U.S.C. § 1631

(2005), see Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997); Peterson, 2004 U.S. 8

Dist. Lexis at *36. To avoid further delay, the Court chooses the latter course and orders the

remaining claims in petitioner’s second habeas petition – those numbered above as (1), (5), (7),

(9), (11), and (12.B) – transferred to the United States Court of Appeals for the Third Circuit for

a decision on the question whether to authorize this Court to consider such claims. 

E. REQUEST TO STAY SECOND HABEAS PETITION

The Court notes that Harper has requested that the federal courts stay his habeas petition

pending the exhaustion of his state court remedies. This request implicates the Supreme Court’s

recent decision in Rhines v. Weber, 544 U.S. 269 (2005), and Court of Appeals precedent. See,

e.g., Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005); Crews v. Horn, 360 F.3d 146 (3d Cir. 

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 9 of 11
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2004); Slutzker v. Johnson, 393 F.3d 373 (3d Cir. 2004) (discussing the evolution of the Third

Circuit’s “stay-and-abey” procedure).

In Rhines, the Supreme Court approved “stay-and-abey” procedures only in the limited

situation “when the district court determines there was good cause for the petitioner’s failure to

exhaust his claims first in state court.” 544 U.S. at 277. Such a procedure should not be

employed “when [a petitioner’s] unexhausted claims are plainly meritless.” Id. If the Court of

Appeals authorizes this Court to consider the merits of Harper’s remaining claims, the Court will

apply the Rhines analysis in deciding whether to stay-and-abey Harper’s second habeas petition. 

IV. CONCLUSION

For the foregoing reasons, the Court dismisses Harper’s claims numbered above as (2),

(3), (4), (6), (8), (10), (12.A), and (13). The Court transfers the petitioner’s remaining claims –

(1), (5), (7), (9), (11), and (12.B) – to the United States Court of Appeals for the Third Circuit

pursuant to 28 U.S.C. § 1631 for a decision on the question whether to authorize this Court to

consider the claims on the merits. 

An appropriate Order follows. 

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_______________________________________

ANTHONY HARPER,

 Petitioner,

 

:

:

:

:

 CIVIL ACTION

v. :

DAVID DIGUGLIEMO, THE DISTRICT

ATTORNEY LYNN ABRHAM, and THE

ATTORNEY GENERAL OF THE STATE

THOMAS CORBOTT,

 Respondents.

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:

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:

:

 NO. 05-3444

_______________________________________:

O R D E R

And now, this 11th day of May 2006, upon consideration of petitioner’s second pro se

Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Document No. 1, filed on July 5,

2005), and petitioner’s pro se Memorandum of Law in Support of Habeas Corpus (Document

No. 2, filed on February 23, 2006), IT IS ORDERED as follows:

(1) The claims numbered in the Petition for Writ of Habeas Corpus as (2), (3), (4),

(6), (8), (10), (12.A), and (13) are DISMISSED pursuant to 28 U.S.C. 

§ 2244(b)(1) on the ground that they were previously raised and denied; and 

(2) The remaining claims numbered in the Petition for Writ of Habeas Corpus as (1),

(5), (7), (9), (11), and (12.B) are TRANSFERRED to the United States Court of

Appeals for the Third Circuit pursuant to 28 U.S.C. § 1631 for a decision on the

question whether to authorize this Court to consider the claims as part of

petitioner’s second habeas petition.

BY THE COURT:

/s/ Honorable Jan E. DuBois 

JAN E. DuBOIS, J.

Case 2:05-cv-03444-JD Document 3 Filed 05/11/06 Page 11 of 11